Gujarat High Court

Puriben Wd/O Bharatsinh ... vs Girishbhai Babulal on 14 September, 2023

Bench: Gita Gopi

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     C/FA/4243/2022                                  JUDGMENT DATED: 14/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 4243 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      PURIBEN WD/O BHARATSINH VECHATSINH
                                     Versus
                              GIRISHBHAI BABULAL
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Appearance:
MR H M SHAH(3997) for the Appellant(s) No. 1,2,3,4
MR MEHUL M MEHTA(3416) for the Defendant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 14/09/2023

                                ORAL JUDGMENT

[1] Heard the learned advocates appearing for the

respective parties.

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[2] The appellants, who are heirs of Bharatsinh

Vechatsinh Rathod, being aggrieved by the

judgment and award dated 26.4.2019 passed by

the MACT (Aux) in MACP no.141/2007, has

preferred this appeal.

[3] This is a second round of litigation. Earlier

the claimants had challenged the judgment and

award dated 28.9.2015 in MACP no.141/2007

passed by the same Tribunal by filing First

Appeal no.1786/2017 and the appeal came to be

allowed quashing and setting aside the

judgment and award dated 28.9.2015 and the

proceedings of MACP no.141/2007 were ordered

to be restored back to the MACT, Gandhinagar

with a direction to the Tribunal to decide the

claim petition afresh after appreciating the

evidence on record as a whole.

[4] Thereafter again, the petition was heard and

M.A.C.P. came to be dismissed on 26.4.2019.

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[5] Advocate Mr. H.M. Shah for the appellants

submits that the learned Tribunal had

committed an error as was observed in the

earlier judgment and award and on

reappreciation of the evidence, the judgment

and award dated 28.9.2015 was quashed and set

aside and was sent back for decision afresh.

However, the very fact which was brought to

the notice of the Court and was reappreciated

in First Appeal no.1786/2017 was again

erroneously committed by the Tribunal and the

vital evidence on record were ignored and the

Tribunal had laid down heavy burden on the

claimants to prove the case beyond reasonable

doubt where though reference has been made of

the principle of preponderance of probability,

the same error came to be committed. Mr. Shah

submits that the driver was not joined as

party following the judgment in the case of

United India Insurance Company Ltd. v.

Moghiben widow of Baldevbhai Devabhai Bharvad

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& Ors., reported in 2009 (4) GLR 2881 but had

the Tribunal any doubt, could have joined the

driver as party respondent or could have

called the driver as its own witness to rebut

or the insurance company could have called the

driver as its own witness to prove by giving

any rebuttal evidence, to the evidence led by

the claimants by way of FIR, Panchnama and had

also proved the case by the fact of charge-

sheet being filed against the driver at

Exh.69. Advocate Mr. Shah submits that the

certified copy of the FIR was produced at

Exh.64, Panchanma at Exh.59, inquest Panchnama

at Exh.66, Panchnama of vehicle no. GJ-1 HA-

6541 at Exh.65, complaint at Exh.58, accident

report at Exh.68 and the charge-sheet at

Exh.69. The applicant no.1 examined herself at

Exhs.24 and 52 and witness - Rangaji Bhimaji

Thakor examined himself at Exh.35 and witness-

Rajuji Jamaji Thakor was examined at Exh.62.

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[6] Mr. Shah submits that Rangaji Bhimaji Thakor

was a witness who was walking along with the

deceased as a pedestrian. They were going to

Dwarka on correct side of Kachcha road and

according to his evidence who was an eye-

witness to the incident had stated that at

about 10:00 a.m. vehicle no. GJ-1 HA-6541 came

from the back side and had hit the deceased,

as a result, the deceased was flung from the

road and he sustained injuries on neck, face

and other body parts and became unconscious.

Advocate Mr. Shah submits that the FIR was

given by Rangaji. However, in the FIR, he gave

vehicle no. GJ-1 CJ-6541 which Mr. Shah stated

that there was some error in the middle series

of the vehicle number where actual vehicle as

per the charge-sheet was GJ-1 HA-6541. Mr.

Shah submits that it is not always possible

for the person to remember the vehicle number

where he himself becomes an eye-witness and on

him, the responsibility of taking care of the

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needs of the injured would be primary and

predominant and it would not be expected of

the person to remember the exact vehicle

number to get reflected in the FIR. Advocate

Mr. Shah submits that FIR was filed on

19.2.2007 and on the very next day i.e. on

20.2.2007, Panchnama of the scene of accident

was drawn and the number of Maruti car was

correctly mentioned as GJ-1 HA-6541. Panchnama

dated 1.3.2007 also refers to white Maruti car

bearing registration no. GJ-1 - HA-6541.

[7] In the earlier round of litigation, the matter

was ordered to be restored on the file to be

considered afresh where the fact of the

vehicle number being the actual vehicle number

was reflected in both Panchnamas was observed.

The evidence to the effect was also given that

the vehicle was GJ-1 HA-6541 and the fact of

charge-sheet as noted in the record and

proceedings was also reflecting the

observation of the First Appeal and this Court

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while quashing and setting aside the judgment

dated 28.9.2015 has specifically observed that

the vital evidence has not been dealt with.

[8] Record and proceedings of the present matter

was called by this Court. The claimant no.1

had examined herself at Exhs.24 and 52 while

Rangaji Bhimaji Thakor was examined at Exh.35.

As per his evidence on 16.2.2007, they were

going to Dwarka. They had night stay at Kali

Village on 17.2.2007 and again on 18.2.2007 at

about 6.00 a.m., they had started from Iyava

Vasna, Taluka Sanand towards Viramgam. He

along with Pintuji Govindji Thakore and the

deceased Bharatbhai all 3 were going towards

Sachana Village walking on the correct side of

the road. As per his evidence, Bharatbhai was

on Kachcha road on the side and 1 km. from

Sachana towards Sanand near Dharanendra

factory at about 10:00 to 10:30 a.m., they

reached at highway road and suddenly vehicle

bearing registration no. GJ-1 HA-6541 came in

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full speed in a rash and negligent manner and

dashed with the deceased Bharatbhai from the

back side. As per his evidence, Bharatbhai was

flung from the road and had fallen near stone

on the side of the road. He has described

about injury and the deceased had been

unconscious. As per his evidence, the person

who was along with them Pintuji had seen the

colour of the vehicle being white but he

states that the driver of the vehicle had gone

ahead and had stopped the vehicle. When they

reached there, he informed that his name was

Alpesh and was from Bopal, Ahmedabad who had

also stated before them about his mistake in

the accident. The driver himself had

recommended for the treatment of the deceased

at Viramgam Village and therefore, for further

treatment, the deceased was taken in an

Ambulance at Vadilal Hospital, Ahmedabad and

on 19.2.2007, he came to know that Bharatbhai

had died in the morning at about 6.30. The

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witness states that the driver of the vehicle

had given his vehicle number as GJ-1 CJ-6541

and therefore, in the complaint, he has

referred the number before the police but

thereafter in the investigation, the original

number was found as GJ-1 HA-6541. The witness

- Rangaji Thakor is an eye-witness to the

incident. He had referred to his communication

with the driver of the vehicle and under what

circumstances, the vehicle no. GJ-1 CJ-6541

was noted in the FIR. While it is stated that

in the investigation, it was found that the

original number was GJ-1 HA-6541. This error

in the FIR cannot be considered as fatal and

in alphanumerical registration number, such

error would not go to the root of the case,

more so in the claim compensation for it to be

rejected. The learned Tribunal has failed to

appreciate that the charge-sheet was filed

against the driver of GJ-1 HA-6541. Both the

Panchnamas reflect the original number of the

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vehicle. The driver himself had appeared

before the police. The accident report form

Exh.66 which is by the inspector of motor

vehicle, RTO, Ahmedabad also refers to the

description in registration number of the

vehicle bearing registration no. GJ-1 HA-6541.

The charge-sheet is against the driver Alpesh

Kishorbhai Thakkar, resident of Ahmedabad,

Himalaya apartment who was arrested on

1.3.2007 as reflected in the charge-sheet

Exh.67. The Tribunal has erred in not

considering this major vital evidence on

record. Even the eye-witness to the incident

had examined himself. He has also explained

under which circumstances the error had

cropped up with regard to middle series of the

vehicle. The learned Tribunal had

unnecessarily laid down heavy burden on the

claimants whereby all necessary evidence as

well as evidence of the eye-witness who is

also the complainant in the FIR was examined.

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The learned Tribunal has failed to appreciate

the judgment in the case of Moghiben (supra)

where the Court is hereby directed to hold

that the police having filed the charge-sheet

against the driver of the vehicle concerned is

a sufficient material to conclude that

concerned vehicle was involved in the

accident. Non-joinder of the driver could not

be fatal to claim compensation since the

driver and owner of the vehicle being joint

tort feasors, they are jointly and severally

liable to answer claim for the compensation

and hence, can be sued jointly or severally.

[9] The negligence of the driver is proved by the

evidence on record and finally by the charge-

sheet on record, the involvement of the

vehicle bearing registration no. GJ-1 HA-6541

was proved by the claimants.

[10] The deceased was agricultural labourer. As per

the evidence of the claimant no.1, she has

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referred in the examination-in-chief that her

husband was going with others on pilgrimage by

foot and has stated that her husband was

working on bore and was also having income

from agriculture and animal husbandry and was

looking after the family consisting of widow

and 3 minors who are aged about 9, 7 and 5 at

the time of filing of MACP no.141/2007. The

income could not be proved by any documentary

evidence. Thus, taking into consideration the

minimum wages schedule on the date of the

accident dated 18.2.2007, Rs.2,500/- is

considered to be his income. The age of the

deceased as reflected in the postmortem note

is 40 years and therefore, 25% prospective

rise in income is granted. Thus, the income

would come to Rs.3,125/- (Rs.2,500/- +

Rs.625/-). The dependents are four in number.

Hence, there would be deduction of one-fourth

amount as personal expenses which would be

Rs.781/-. The dependency loss would be

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Rs.2,344/-. Considering the age, multiplier of

15 would be applicable and thus, the annual

dependency loss would be Rs.4,21,920/-.

[11] In the case of Magma General Insurance Company

Limited Vs. Nanu Ram alias Chuhru Ram & Ors.,

reported in (2018) 18 SCC 130, it has been

observed as under:-

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a

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husband-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979)

Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care

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and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

[12] At the time of the accident, all the children

were minor. The widow had filed the claim

petition as a guardian of 3 minors. All would

be entitled for consortium loss of Rs.40,000/-

each. Thus, amount of Rs.1,60,000/- is granted

under the head of consortium loss. As per the

decision in the case of National Insurance

Company Limited Vs. Pranay Sethi & Ors.

reported in (2017) 16 SCC 680, the claimants

are entitled to compensation of Rs.15,000/-

towards loss of estate and Rs.15,000/- towards

funeral expenses. Thus, the computation of

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income is as under:-

Loss of dependency Rs.4,21,920/- Loss of consortium + Rs.1,60,000/-

       Loss to estate                           + Rs.       15,000/-
       Funeral expenses                         + Rs.       15,000/-
       Total compensation                       = Rs.6,11,920/-

[13] In view of the above, the appellants would be

entitled to total compensation Rs.6,11,920/-

with interest at the rate of 7.5% per annum

from the date of filing of the claim petition

till its realization. The insurance Company is

directed to deposit the said amount within

eight weeks from the date of receipt of writ

of this Court.

[14] Out of aforesaid amount, 50% of the amount be

invested in a Fixed Deposit with any

nationalized Bank for a period of 3 years.

After 3 years, the FDR amount be paid to the